@TheAustralian - RU Joking? "Custody Wars Psych 'Fishing' Fear"
Posted: 8th May 2015
Posted in: News
Posted by: Dean Evans, Partner
An Article Appearing in Today’s Edition of The Australian Entitled, “Custody Wars Psych ‘Fishing’ Fear” Has Us Wondering About The Proper Perspective.
When you read the Article appearing on Page 4 of today’s edition of The Australian newspaper, you are encouraged to the view that Psychiatrists are alarmed at the potential for use of otherwise private patient information in family law legal proceedings.
When I read the article and saw the quotes, I felt my temperature immediately rise. I was also reminded of the views of early mentors of mine that “Doctors Hate Lawyers.”
I’ve now read the article a few times and my feelings are just the same – “Are you bloody serious?”
Applications for parenting Orders made to the Family Law Courts, are decided by Judges who are directed to (i.e. the mandated primary objectives are to) consider what Orders should be made so as to meet the best interests of children. When doing so, Judges are to adopt and observe the notion that the children’s welfare is the paramount consideration.
It is for this simple and proverbial “nose on your face” reason, that the right of parents to privacy of relevant medical information, must be subservient to, or, in plain English, must give way to, the rights of children to have their best interests considered. This warrants the disclosure and review of the medical records which pertain to parents’ mental health (current, past and any information about their foreseeable future mental health issues).
Contrary to the opinion of those quoted in the article, it has been my experience that checking someone’s mental health records and proving their contents are often used:-
- To prove that individuals have taken responsibility for mental health issues so as to properly parent their children and in doing so, regularly see a mental health professional to cope with anxiety, depression or even the grief of the conclusion of one’s relationship;
- To disprove allegations that a parent is in some way compromised as an appropriate carer for children – given that mental illness is not a disqualifier for being a parent, provided the illness is recognised, acknowledged and appropriately treated;
- To ensure that people are, when necessary, able to balance their mental health by regularly taking medication and maintaining regular appointments for review/supervision by medical professional;
- To help the Court make Orders which will best support the children’s needs – for example, by making an Order for a mental health assessment by an expert, requiring parents to follow treatment plans and to permit the Court to review (in the context of meeting the child’s best interests), whether the parents are meeting or capable of meeting the needs of children in cases before it.
The article is devoid of perspective, given that one of the major causes of mental health issues in children, is the conduct of their parents and whether, during their childhood, the children were exposed to events of physical or emotional abuse.
If you asked a family lawyer how they feel about this article, you would typically get a response like this:-
- Many people who seek advice about parenting disputes, arrive at a lawyer’s desk seeking help because they have not been able to resolve the matter direct with their spouse after separation – at the end of the first appointment, in many instances, a lawyer is left to wonder whether mental health issues exist;
- A major factor in both the separation and an inability to resolve issues, can present in the form of one or both parties being affected by mental health issues of one kind or another;
- One of the considerations spelt out by the Family Law Act as being a factor a Court must consider, is the subjective health status of each parent and their capacity to provide for the physical and emotional needs of the children – if a lawyer, party or the Court was to do service to this consideration, it is trite to observe that gathering evidence about mental health issues would be vital and that if a Court overlooked this, the result may well be that mental health issues would go on to impact the child in an unforeseen way as a result of Orders being made in disregard of mental health issues; and
- The complaint by doctors put forward in the article about privacy is a bit precious, when the same doctors really should be thinking of whether disclosing the medical information may well prevent mental health issues arising in the ‘next generation’ and may indeed serve a higher purpose.
I always seem to end up at the same self-generated answers to my own soap box issues. Here’s todays:-
- This is another example of someone seeing things from a limited closed dimensional point of view;
- There are wider and objectively reasonable considerations which warrant the release of private information – because you are deferring to and asking a public Court to decide your parenting case and thereby submitting to a Court with “parens patriae” decision making power over your children (i.e. the substitute determinor of what is in a child’s best interests when parents can’t agree);
- People are often applauded by the Court for accepting that they have mental health issue and taking up treatment and care options – after all, so many people in our community have either ongoing or situational mental health issues in their life;
- Children’s rights are paramount and as a result, the privacy of medical records relating to parents whose ability to meet the needs of their children must be considered must give way to those rights; and
- Why should children’s care and welfare be jeopardised by the keeping of serious mental health questions secret – they’ve got a right to a happy childhood, to achieve their full potential and grow into unaffected adults, without being hamstrung or affected by the impacts of mental health issues in others.
As to the notion that the lack of privacy of mental health records might mean people won’t seek out help, the Family Law Courts has great experience in seeing and identifying, from case to case, litigants who might be labouring under mental health issues and possesses the power to send parents for mental health assessment so as to obtain expert opinions concerning how parenting cases should be decided where parents have mental health issues. Often they do not need to identify the issues, as the parties present making allegations of mental health issues against one another. Responsible legal practitioners and their clients, having considered the contents of the Family Law Act, where it is spelt out that any parental incapacity or deficit should be addressed, will have garnered a medical report concerning their client either offering a clean bill of health or otherwise confirming that mental health issues were being well managed and were of no impact to the best interests of the children.
I have to say that I will forever argue the opposite of the view in this article.
It would have been nice to have the journalist and those quoted in the article, consider the competing or counterveiling position/s before going to print.
Thanks for reading.